Ex. Sep Madan Singh vs Union Of India (Uoi) And Ors.
2006 Latest Caselaw 1479 Del

JUDGMENT

Swatanter Kumar, J.

1. The petitioner has filed this petition under Article 226 of the Constitution of India praying for setting aside and quashing of the order dated 3rd October, 2002 (Annexure P-1 to the writ petition). It is further prayed that the respondents be directed to grant service pension to the petitioner w.e.f. 5-10-98.

2. The relevant facts are that the petitioner was enrolled as a member of the Indian Army on 1.7.65 in Rajputana Regiment and was allotted service No. 2959024. The petitioner was discharged on 1.7.80. His pension papers were forwarded and the petitioner was granted service pension for the service rendered by him in the Army. However, the petitioner was re-enrolled in defense Security Corps (in short 'DSC') on 16.11.83 and at the time of his induction into DSC, the petitioner was not suffering from any disease and was subjected to strict medical check up. The petitioner was put in medical category 'AYE'. The petitioner was again discharged from that service of DSC on 4-10-98 as his services were no longer required. The respondents had passed an administrative order only 42 days prior to the date when the petitioner was to complete 15 years of service i.e. the requisite service for drawing complete pension. The petitioner, thus, had put in 14 years 10 months and 28 days qualifying service to earn the pensionary benefits. The petitioner's request for grant of his service pension on 23-9-2002 was rejected by the authorities vide order dated 3-10-02. According to the petitioner, the said order is illegal, arbitrary and is in violation to the specific provisions. According to the petitioner, as per Regulations 132 and 266 of the pension Regulations for the Army, 1961 , for the grant of pensionary awards to personnel of the defense Security Corps, all the general rules as are applicable to combatants of the Army are applicable except that they are inconsistent with the provisions of the regulation in the Chapter 4 meant for DSC personnel. Regulation 9 of these Regulations provided that in calculating the length of qualifying service, fraction of an year equal to three months and above but less than 6 months shall be treated as a completed one half year and reckoned as qualifying service. Hence, the period of four months and 18 days to the credit of the service of the petitioner ought to have been treated as six months, thus completing the period of 15 years of qualifying service. It is also the case of the petitioner that in terms of Regulation 125 of Pension Regulations, the petitioner is entitled to condensation of deficiency in service for eligibility to service pension. While relying upon the Government of India notification dated 14.8.2001, it is also the case of the petitioner that power to condone has been given to the Records Office and they were competent to condone the said deficiency. The spirit of this notification including notification dated 10/16 February 76 is that the authority should be liberal in making up the deficiencies and the benefit should be given to the member of the Force.

3. The respondents have contested the claim of the petitioner that after joining the DSC, the petitioner had incurred six red ink entries during his service and he was resultantly discharged on administrative grounds under Rule 13(3) item III(V) of Army Rules, 1954. The petitioner had rendered 14 years and 320 days qualifying service with DSC for which he was correctly paid service gratuity at the time of his discharge and the petitioner is not entitled to any pensionary benefits as claimed. It is stated that in terms of Rule 132, the minimum period of qualifying service (without weightage) actually rendered and required for earning service pension is 15 years and the petitioner had not put in the said number of years of service and, thus, is not entitled to claim any pension. According to the respondents, condensation of deficiency in service under Rule 125 of Pension Regulation of the Army Part I, 1961 will not be allowed for grant of second spell of service pension as per Army Headquarters letter dated 3rd December 1992. It is submitted that condensation of deficiency in service for grant of second spell of service pension has not been agreed to by the Government of India. In these circumstances, the respondents pray that the writ petition be dismissed.

4. While declining the request of the petitioner for grant of pensionary benefits, the respondents vide their letter dated 3rd October, 2002 had given the same reason that in terms of para 132 of Pension Regulations, the petitioner does not possess the qualifying service and that is why the petitioner was paid the service gratuity and DCR gratuity at the time of discharge and as the condition of minimum qualifying service is not satisfied in the case of the petitioner, he was denied the relief of second pension for the service rendered with DSC.

5. There is no dispute to the fact that the petitioner does not have to his credit 15 years of service in DSC. Under Clause 125(c), for an individual who is invalided with less than 15 years service, deficiency in service for eligibility to service pension or reservist pension or gratuity in lieu may be condoned by a competent authority up to six months in each case. Under Regulation 134, the competent authority is empowered to condone the deficiency of service in a particular rank not exceeding three months, except on voluntary retirement. In addition to these provisions, the petitioner has relied upon the letter issued by the Army Headquarters on 10th/16th February, 1976. The relevant part of the same reads as under:

1. In accordance with Regulations 125 and 134, pension Regulations for the Army Part I (196), deficiency in service up to 6 months and deficiency of service in particular rank up to 3 months can be condoned by the competent authority. The competent authority for such cases is the Area/DisIndep Sub Area, Indep Bde Comdr vide Govt of India, Min of Def letter No A/AG/PS4 (h) /6556/ D (Pensions/Services) of 11 Aug 71 ( copy attached). There is no stipulation in Regulations and 134 laying down the number of cases which could be approved. The Regulations are non-restrictive in nature and can be exercised freely.

2. It has been brought to the notice of this H Q that certain Fmnt Comdrs show reluctance to give sanction to condone the deficiencies in service/rank service with a view to keep such sanctions to the barest minimum. In this connection, it may be mentioned that the Govt have sanctioned these concessions for the benefits of servicemen both as a welfare measure and to keep up their morale appart from giving them the maximum permissible pensionary benefits Giving such sanctions in limited numbers not only creates a sense of discrimination but also defeats the very purpose for which these concessions have been authorised. It should, therefore, please stressed on all concerned that they should use their powerswidely and benefit the maximum number of servicemen.

6. It also cannot be disputed in face of Regulation 266 that grant of pensionary awards to personnel of the DSC shall be governed by the same general rules as are applicable to combatants of the army except where they are inconsistent. On the strength of the above provisions, it can safely be stated that condensation of deficiency in required service can be made good particularly where it is less than six months. The letter categorically says that the regulations are non restrictive in nature and can be exercised freely. The purpose of issuing the above letter has itself been stated at the end of the letter where it was stressed on all concerned that they should use their powers widely and benefit maximum number of servicemen. It is obviously a beneficial legislation and has to be given liberal construction. The objects sought to be achieved by these regulations and particularly the letter issued by the Army Hqs. is to grant benefit rather than not to exercise a power rightfully vested in the authorities. In the impugned order, no reference has been made as to why the request of the petitioner for condensation cannot be entertained or was not maintainable. Admittedly, the petitioner has put in 14 years 10 months and 28 days service which falls short by less than six months of the required period of service of 15 years. It was obligatory on the part of the authorities to deal with the request of the petitioner and make appropriate directions in that regard. The impugned order suffers from the defect of non-application of mind and refusing to exercise a power lawfully vested in the said authorities.

7. In view of our discussion, we set aside the order dated 3.10.2002. While allowing the writ petition, we direct the authorities to consider the request of the petitioner for condensation of deficiency of service and grant of service pension in accordance with rules. The respondents are further directed to pass appropriate orders as expeditiously as possible and in any case not later than six months from the date of passing of this judgment.

8. The writ petition is disposed of while leaving the parties to bear their own costs.